66 Me. 545 | Me. | 1877
Action upon the case to recover for the benefit of the estate which the plaintiff represents, the damages given by B,. S.., c. 18, § 65, in cases of loss of life.
The accident by which the plaintiff’s intestate lost her life was the breaking down of a bridge over “the inlet of Matthews’ pond,” described in the exceptions as “a small stream dividing the towns of Hebron and Oxford.”
It was in controversy before the jury, whether the disaster occurred by reason of the breaking of a rotten stringer, as soon as
The first exception relied on by the defendants, is to the refusal of the presiding judge to rule that the action could not be maintained unless the plaintiff had given notice to the selectmen of the defendant town, setting forth his claim for damages, and specifying the nature of the injuries received, before the commencement of the action.
To support their claim to this notice, the defendants rely upon the provision in laws of 1874, c. 215, requiring the person who receives any bodily injury, or suffers any damage in his property through any defect or want of repair, &c., to give such notice within sixty days thereafter.
Obviously this requirement applies to another class of cases. It does not by its terms embrace such as the one before us, and could only be made to do so, by a forced, unnatural and unreasonable construction which we cannot adopt.
The second exception is based upon the idea that a different rule of construction obtains as to legislative acts defining the boundaries of towns from that which governs the construction of deeds and grants and makes a running stream the boundary between co-terminous proprietors; and that the act, which makes so much of the town of Hebron as lies south-west of this stream and Matthews pond and its outlet to constitute the town of Oxford, makes the south-western bank instead of the thread of the stream, the boundary of Oxford. The idea is apparently a novel one to the inhabitants of Oxford, who seem from the fourth and fifth requested instructions to have acted on a different notion of their boundaries and duties. It was elicited, doubtless, by the exigencies of this case. Counsel seek to support it by the citation of sundry acts of incorporation where the legislature, ex abundanti cautela, have expressly made the centre of a stream the boundary between towns. We do not perceive that these affect the question, which is, what is the true construction, where the stream is made the boundary, and the special precaution to avoid controversy by prc-cise and definite expressions is omitted ?
It is obvious, that as town lines are frequently made lot lines in conveyances, much confusion and inconvenience would result from applying a different rule of. construction to the instruments by which they are defined, and besides imposing unjust burdens upon some towns for the benefit of others, the titles of many private individuals would be disturbed.
Where the question has arisen, other courts seem to have held that acts of incorporation and deeds should be construed by the same rule in this particular. Cold Spring, &c., v. Tolland, 9 Cush. 492. Ipswich, pet'rs, 13 Pick. 431. Knight v. Wilder, 2 Cush. 199, 210. State v. Gilmanton, 9 N. H. 461. Jones v. Soulard, 24 How. (U. S.) 41. Schools v. Risley, 10 Wall. 91. McCannon v. Sinclair, 2 El. & El. 53. And in the somewhat analogous ease, where a boundary of a parish is described in the statute creating it, thus “with all the houses and grounds abutting on and upon the said road,” the parish is held to extend to the middle of the road. Queen v. Strand District, 4 B. & S. 526. Construing the act of incorporation as we should construe a deed, the refusal to give the requested instruction was right. Morrison v. Keen, 3 Maine, 474. In what is called a qualification of the third request for instruction, the presiding judge merely called the attention of the jury to the controverted question of fact, upon their decision of which the applicability of the instruction depended. The instruction as'given, was manifestly correct. Without the qualification, the instruction requested would have been obnoxious as an expression of opinion upon a question of fact, prohibited by laws of 1874, c. 212. There is no merit in the exception. There is no report of the instructions given, but it appears by the one to which the- exception we have last considered was taken, that the jury were required to find that the defect
The liability is a statute liability, and the remedy which the statute furnishes must be pursued. The instruction requested was properly refused. Exceptions overruled.
Judgment on the verdict.